Saturday, December 14, 2013

Who’s responsible for India’s anti-gay law?

Note: News is filled with reports that an Ordinance might be passed revoking 377 once the Winter Session of Parliament is over. We'll keep watching.

A furor broke out in the Indian news media and social media
on December 11, 2013, as news of a Supreme Court judgment made its way
through the country. The court had upheld the constitutionality of
Section 377 of the Indian Penal Code, which reads: “Unnatural offences —
whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal, shall be punished with imprisonment for
life, or with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.” The Penal Code
is a legacy of the rule of the United Kingdom, where homosexuality was
made legal in 1967.

The section had been previously challenged by Naz
Foundation, a NGO that works in the area of HIV and sexual health. In
2009, the Delhi High Court had ruled that the section was in violation
of Acts 21, 14 and 15 of the Constitution of India, which protect
citizen’s rights to personal liberty, equality, and from being
discriminated against. Some of the arguments that swayed the Court
essentially reasoned that 377 has been repeatedly used to abuse gay,
LBGT [lesbian, gay, bisexual & transgender] and even health workers
by authority figures, and by its very existence it allowed the gay
community to be targeted and ostracized by society large. The logic was
that even though Section 377 only focused on the ‘act’ of unnatural
carnal behavior between men, women or men and women, essentially, due to
their sexual activity, it is the gay community that had been unfairly
targeted by it. The Court also felt that 377 did not need to cover
‘consensual sexual acts between adults on the ground of public morality’
and nor did it distinguish between the public and private sphere.
Therefore, it concluded that public morality was different from
constitutional morality, which the Section was in violation of.

What followed was jubilation from gay rights activists who
thought that the judgment, though limited only to Delhi, was the start
of a progressive new India that would possibly champion gay rights and
their freedom of expression. “Homosexuality is not a crime!“ screamed
the headlines in India’s most popular English magazine, bringing a
smile to India’s small LGBT population of about 25,00,000 people.

However, only days later the judgment was challenged in
the Supreme Court, which has given its decision only 5 years later. In a
huge setback to LGBT rights, the Court has upheld Section 377 as
constitutional, thereby making homosexual intercourse illegal. The
reasoning of the Supreme Court of India, in a nutshell, is that the
language of the Section, while may seem unfair to a certain community,
certainly does not single them out. In fact, the court feels that many
other non consensual situations involving the ‘act’ but different
parties like young children, men and women and so on, are protected by
the Section. That it is misused by authorities does not make it
unconstitutional. A final nail in the coffin was the Court’s reasoning
that instead of erring on the side of judicial overreach, the Court
would rather wait for Parliament to legislate the Section away. Its
judgment read: “After the adoption of the IPC in 1950, around 30
amendments have been made to the statute, the most recent being in 2013
which specifically deals with sexual offences, a category to which
Section 377 IPC belongs. The 172nd Law Commission Report specifically
recommended deletion of that section and the issue has repeatedly come
up for debate. However, the Legislature has chosen not to amend the law
or revisit it. This shows that Parliament, which is undisputedly the
representative body of the people of India has not thought it proper to
delete the provision.” It ended up saying the abuse of this Section –
“used to perpetrate harassment, blackmail and torture on certain
persons, especially those belonging to the LGBT community” – might be a
factor for the Legislature to weigh while considering amending Section
377.

Therefore, the Supreme Court has firmly put legislating
back in the corner of the legislators, and in turn earned the wrath of a
section of India’s middle class. In an article titled ‘Justice Denied’,
commentator Pratap Bhanu Mehta has slammed the judgment writing, “But
the court does not seem to realise that hiding behind Parliament’s
omissions is not a neutral stance; it upholds the constitutionality of
an evil law. In the name of deference to an assortment of petitioners,
it gives aid and succour to the reactionary elements of a religion
rather than its best exemplars… Even if it were upheld by Parliament, it
would infringe on basic rights and possibly the basic structure. The
court’s job is to take a stand on constitutionality. It did not do its
job on the occasion that warranted it.”

The criticisms continue. In Kafila, Siddharth Narain has presented a detailed analysis of
what he considers “narrow and blindfolded interpretation of the law,
ignoring the momentous changes in society and notions of morality that
India is witnessing.” Further, according to Narain, “the Court also said
that there were ‘only 200 persons’ prosecuted under section 377 in the
last 150 years, ignoring the fact that these are 200 recorded judgments
of the High Courts and Supreme Court, which is only a fraction of the
unreported cases at the trial level. Further this does not take into
account the impact of having the law on the statute book, and the threat
of use of the law, that LGBT persons face on an every day basis.”

Even the present government has jumped into the debate. The Finance Minister, P. Chidambaram has said that,
“in 2013, to say everyone should have same sexual orientation is
absurd,” and that the “government should file curative petition, ask for
matter to be reviewed by bench of 5 judges.” Even the Congress
President, Sonia Gandhi made a statement
that, “Delhi High Court had wisely removed an archaic, unjust law… I
hope the Parliament will address this issue and uphold the
constitutional guarantee of life and liberty to all citizens of India,
including those affected by this judgment.”

However, there are those who support the Supreme Court’s
decision to put the onus on the legislators. Member of Parliament Rajeev
Chandrasekhar thinks that, “the issue of legalising same sex
relationships is best protected by a proper law in Parliament that
explicitly protects these relationships and not be based on
‘interpretative’ of an old statute! The appeal of the High court
decision was filed Muslim Law board, Christian clerics and a BJP MP who
have opposed this and not the judge/Supreme Court!”

Meanwhile, social media in India is abuzz with people
changing their profile pictures to black in solidarity of the LGBT
community also has users putting up a picture kissing someone of the
same sex, with the tag #gayforaday. Protests have been arranged in New
Delhi and people have already started petitions and strategies to lobby
parliamentarians to amend the Section to be reflective of a modern
Indian society that gives even its sexual minorities the equality and
dignity they deserve.

However, the sad truth is that with elections looming,
political parties including the ruling Congress Party is unlikely to
take up the issue in parliament. As a DNA news report
explains, “there is no consensus within the Congress, party sources
said, as it is aware that a step in favour of gay rights can increase
its unpopularity as most of India, especially religious groups cutting
across various religions, are totally against it and see it as a sin.
There is also no denying the fact that gays and lesbians have a very
thin population in India and no action in their favour will hardly
reflect in the elections.” As news of the Supreme Court judgment broke,
various religious parties and Godmen with huge followings rejoiced. Baba
Ramdev, much in the news for his massive following and political
ambitions declared upon hearing the verdict that, “the court has respected sentiments of millions of Indians by declaring homosexuality a crime.”

2 comments:

The Supreme Court has fucked up big time. For all its weasel words of legalese, by upholding Section 377 of the IPC it has done the worst sort of minority bashing possible: it has sought to deny a sexual minority its right to exist under the law.

This is sick. It is fascist. And it makes my stomach churn. Which minority group will be denied its right to exist next?

This grand institution, the Supreme Court, appears to be swaying under the influence of the great saffron wave that some see emerging in the run-up to India's General Election of 2014.

A zeitgest, it is, yes, but how forceful we do not know yet. Expect other institutions to start falling in line. They may yet be forced to. Half the media already has... in the name of popular sentiment. The SC's job is to keep any such a zeitgest from crushing human rights. Instead, this allegedly honourable institution has signalled that it is likely to go with the flow, as it were, when the going gets rough. So here's the thing: how often is a country's most popular man someone who is best known for "showing THEM their place"?

Three gay men were attacked in Bangalore in the Ching Lung Bar, a popular bar with gay men in the city. The incident happened on March 6th at around 8:30 pm when one of the men asked for a lighter from another man in the bar.